Toyota Motor Corporation Australia Ltd v Bendrups
[2016] VSC 718
•2 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 05201
| TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED | Plaintiff |
| v | |
| DR ANDREA BENDRUPS | First Defendant |
| and | |
| DR JACK KIRSZENBLAT | Second Defendant |
| and | |
| DR JENNY DOWNES-BRYDON | Third Defendant |
| and | |
| MR KEVIN SIU | Fourth Defendant |
| and | |
| JENELLE LANDY | Fifth Defendant |
---
JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 November 2016 |
DATE OF JUDGMENT: | 2 December 2016 |
CASE MAY BE CITED AS: | Toyota v Bendrups & Ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 718 |
ADMINISTRATIVE LAW – Judicial review of an opinion of a medical panel – Denial of procedural fairness – New facts and circumstances – Whether medical questions should be remitted to original medical panel or differently constituted medical panel – Remitter to Convenor of Medical Panels – Civil Procedure Act 2010, s 9 – Accident Compensation Act 1985, s 45 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 – Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Fleming QC with Mr S Moloney | Minter Ellison |
| For the Defendant | Mr B Walters QC with Mr C Smale | Ryan Carlisle Thomas |
HIS HONOUR:
Introduction
Jenelle Landy, the Fifth Defendant, was employed by the plaintiff, Toyota Motor Corporation Australia Ltd (‘Toyota’) at its Altona North factory from November 1997 until May 2010.
In May 2015 the Magistrates’ Court referred a series of medical questions to a Medical Panel (‘the Panel’) pursuant to s 45(1) of Accident Compensation Act 1985. Toyota’s application for judicial review under Order 56 of the Supreme Court (General Civil Procedures) Rules 2015 relates to answers given by the Panel to questions posed by a Magistrate as to Ms Landy’s work capacity.[1]
[1]The first to the fourth defendants are members of the Medical Panel, namely, Dr Andrea Bendrups, Dr Jack Kirszenblat, Dr Jenny Downes-Brydon, Mr Kevin Siu. In accordance with the principles set out in R v The Australian Broadcasting Tribunal & Ors; Ex parte Hardiman & Ors (1980) 144 CLR 13, the members of the Panel took no part in the hearing and have indicated that they will submit to such orders as the Court might make.
In August 2015 the Panel certified that between the time of the termination of her payments and August 2015, Ms Landy had no current work capacity, that this would continue indefinitely and it was materially contributed to by a work injury.
Toyota’s grounds of review were scattergun and, for the most part, could not possibly have been sustained. At the hearing senior counsel for Toyota (who did not draw the grounds of review or the submissions accompanying the application) abandoned all but one point – that of denial of procedural fairness.
In précis, it was said by counsel for Toyota that his client had no warning of, and therefore no opportunity to put an opposing case in relation to the Panel’s conclusion that part of Ms Landy’s ongoing symptoms (both in the past and indefinitely into the future), related to her use of opioids or opioid-like medication. It was therefore denied procedural fairness.
On balance I think this contention is correct and that there was a denial of procedural fairness. For the reasons I will now set out, I propose to grant the application, quash the Decision of the Panel and remit the matter to the Convenor of Medical Panels for re-hearing with a recommendation that it be heard by the same Panel.
Background facts
Ms Landy’s role at Toyota was primarily physical in nature: she worked in production and her duties included manually stacking metal panels and operating forklift trucks and cranes.
On 16 or 17 June 2008, Ms Landy injured herself at work while stacking metal panels and suffered upper neck pain and upper and lower back pain as a result (‘First Injury’).[2] Ms Landy returned to her pre-injury duties on or about 9 August 2008.
[2]Worker’s Injury Claim Form dated 1 July 2008.
Ms Landy’s claim for compensation in relation to the First Injury was accepted by Toyota on 15 August 2008.
On 13 September 2008, Ms Landy again injured herself, this time while transferring metal panels between pallets (‘Second Injury’).[3] According to her Worker’s Injury Claim Form, she experienced pain in her lower back and both of her legs. This claim was also accepted.
[3]Worker’s Injury Claim Form dated 15 September 2008.
Following the Second Injury, Toyota made two attempts to return Ms Landy to work on modified duties, however these were unsuccessful and Ms Landy’s employment was terminated on 6 May 2010.
On or about 19 April 2011, Ms Landy received notice that her weekly compensation payments would cease from 13 August 2011.
On 29 April 2014, Ms Landy commenced proceedings in the Magistrates’ Court for payments of compensation in respect of the Second Injury. She challenged the termination of her weekly payments and sought orders that the payments be reinstated retrospectively from 13 August 2011. The pleaded particulars of injury were:
The production, aggravation, acceleration, exacerbation and/or deterioration of lumbosacral disc disease including an L5/S1 disc prolapsed with referred symptoms in both legs, feet and toes. Anxiety and depression.
On 18 May 2015, Toyota sought to have a series of medical questions referred to the Panel. His Honour Magistrate Saines referred the questions to the Panel with a large number of medical reports, investigator reports, claim forms, surveillance videos and submissions made by each of the parties for consideration by the Panel.
A Certificate of Opinion containing the Decision (‘the Decision’) with accompanying Reasons (‘the Reasons’) was provided by the Panel on 28 August 2015 following an examination of Ms Landy by the Panel on 5 August 2015.
Evidence as to the use of opioid or similar medications
A number of the medical reports provided to the Panel demonstrated that Ms Landy has a history of use of opioid medication in the form of Tramadol.[4] The Panel was told by Ms Landy that she also used Norspan transdermal patches (not referred to in the medical reports). Both medications are associated with side effects such as drowsiness and difficulty with the ability to focus.
[4]See [34(a)-(c)] below.
The first recorded use by Ms Landy of Tramadol is in June 2009,[5] and intermittent use is noted throughout the medical reports, with significant breaks during Ms Landy’s three pregnancies.
[5]Report of Dr Dominic Yong dated 15 June 2009.
The reports also reveal that in addition to Tramadol and Norspan, Ms Landy has at times been prescribed the benzodiazepam Valium. Common side effects of Valium include drowsiness, fatigue and memory problems.
The Decision and Reasons of the Panel
In précis, the Panel found that Ms Landy suffered from Chronic Pain Syndrome as a result of and materially contributed to by her work injury. It also found that Ms Landy had no work capacity between 13 August 2011 (when her payments ceased) and 5 August 2015 (the date of the Panel’s examination) and that this was likely to continue indefinitely.
The questions referred to the Panel by the Magistrate and its answers were as follows:
Question 1What is the nature of the plaintiff’s current medical condition, if any, relevant to any injury to her lower back (‘the said injury’)?
Answer:In the Panel’s opinion the Plaintiff is suffering from Chronic Pain Syndrome following a (now resolved) soft tissue injury of the back in the setting of degenerative changes of the lumbosacral spine and from a consequent chronic adjustment disorder with depressive and anxiety features as well as adverse symptoms of opioid use, relevant to the said injury.
Question 2What is the extent to which any medical condition of the plaintiff:
(a)results from, or is it [sic] materially contributed to by;
(b)resulted from, or was materially contributed to by,
the said injury?
Answer:In the Panel’s opinion the Plaintiff’s current medical conditions of a Chronic Pain Syndrome following a (now resolved) soft tissue injury of the back in the setting of degenerative changes of the lumbosacral spine and her chronic adjustment disorder with depressive and anxiety features and adverse symptoms of opioid use, resulted from, still result from and were and are still materially contributed to by the said injury.
Question 3Between 13 August 2011 and the date of the Medical Panel’s examination, did the plaintiff have:
(a)a current work capacity; or
(b)no current work capacity?
Answer:(a) No.
(b)Yes.
Question 4If ‘yes’ to question 3 (b) above, did the plaintiff’s ‘no current work capacity’ result from, or was it materially contributed to by, the said injury?
Answer:In the Panel’s opinion the Plaintiff’s ‘no current work capacity’ between 13 August 2011 and the date of the Medical Panel’s examination resulted from and was materially contributed to by the said injury.
Question 5As at the date of the Medical Panel’s examination, does the plaintiff have:
(a)a current work capacity; or
(b)no current work capacity?
Answer:(a) No.
(b)Yes.
Question 6If the plaintiff currently has no current work capacity, is this likely to continue indefinitely?
Answer:Yes.
Question 7If ‘yes’ to question 6, does the plaintiff’s ‘no current work capacity’ result from, or is it materially contributed to by, the said injury?
Answer:In the Panel’s opinion the Plaintiff’s ‘no current work capacity’ results from and is materially contributed to by the said injury.
As is evident from the reasons, the Panel did the following:
·It considered a large number of medical reports, investigators’ reports, claim forms and video surveillance tapes.
·It took a lengthy history from Ms Landy in the course of its examination on 5 August 2015 dealing with her work and the effects of the injuries upon her.
·It took into account her current medication regime and her current symptoms and capacity to carry out tasks.
·It noted Ms Landy’s use of opioids in the past and that she was now using Norspan transdermal patches.
·It conducted a physical examination of Ms Landy.
·It watched the surveillance tape with Ms Landy, which it considered was consistent with her complaints.
·It inspected the medical imaging, which included MRIs of the lumbosacral spine of 2008, 2010 and 2012.
·It concluded that Ms Landy:
[I]s suffering from a chronic adjustment disorder with depressive and anxiety features and from adverse symptoms of opioid use which have arisen as a consequence of the said injury;
·It concluded that Ms Landy:
[I]s suffering from a Chronic Pain Syndrome following a (now resolved) soft tissue injury of the back in the setting of degenerative changes of the lumbosacral spine, relevant to “the said injury” and that she was suffering from a chronic adjustment disorder with depressive and anxiety features and from adverse symptoms of opioid use.[6]
[6]Page 4 of the reasons.
·In regards to employment it concluded that Ms Landy had:
Chronic Pain Syndrome and chronic adjustment disorder with depressive and anxiety features and adverse symptoms of opioid use is such that [she] was not currently capable of performing her full pre-injury employment duties.[7]
[7]Page 12 of the reasons.
·It noted her worsening psychiatric condition and that her medication regime had expanded to include regular narcotic analgesics and an increased dose of antidepressant medication.
·It then said that:
Based on its combined experience and expertise the Panel considered the severity of the plaintiff’s Chronic Pain Disorder and her psychiatric condition symptoms as well as her adverse symptoms of opioid use is such that she could not reliably be engaged in employment. The Panel therefore concluded that her medical condition is such that the plaintiff is not currently capable of returning to work in her pre-injury duties and there is no meaningful work which the plaintiff would be capable of performing on a reliable and consistent basis. The Panel therefore concluded that the plaintiff has no current work capacity.[8]
· The Panel concluded that such a condition (i.e. chronic pain disorder) had existed since August 2011.
· It was satisfied that:
[T]he medical conditions are still materially contributed to by “the said injury” [and that they were] unlikely to remit with further treatment in the foreseeable future. The Panel therefore concluded that [Ms Landy] is likely to continue to have “no current work capacity” indefinitely.[9]
[8]Page 13 of the reasons.
[9]Page 13 and 14 of the reasons.
At this stage, the following two observations can be made regarding the reasons:
(a) They are cogent, clear and provide the reader (including Toyota’s lawyers) with a totally comprehensible path of reasoning. Indeed, it is the clarity of the reasons that provide the basis for the complaint now made by Toyota as to the role of the opioid medication used by Ms Landy in contributing to her symptoms and incapacity for work; and
(b) the use of opioid medication and its effects formed a material part of the Panel’s conclusions as to Ms Landy’s ability to engage in employment.
Grounds of appeal
On 5 October 2015, solicitors for Toyota sought judicial review of the Decision. As I mentioned earlier, the grounds alleged were numerous and, to some extent (unfortunately), standard form in any attack on the decision of a medical panel whether by a worker or employer:
(a)jurisdictional error;
(b)irrationality;
(c)denial of procedural fairness; and
(d)inadequacy of reasons.
As I mentioned earlier, at the commencement of the hearing, senior counsel for Toyota abandoned all but the procedural fairness point. This was an acknowledgement of the futility of the abandoned grounds which should not have been agitated. The reasons could be seen to be impeccable and incapable of challenge. This was a classic example of resort to the ‘the refuge of the desperate’.[10] Similarly, arguments as to jurisdictional error and irrationality could not be sustained. Putting Ms Landy’s lawyers and the Court to the trouble of considering these allegations was unsatisfactory, particularly in the light of the provisions of the Civil Procedure Act 2010.
[10]George v Nisselle [2005] VSC 177, [56] (Gillard J).
The remaining ground that Toyota relied upon – denial of procedural fairness was set out in the originating motion as follows:
In arriving at its answers to medical questions referred to it including in particular Questions 1 and 2, the Medical Panel denied [Toyota] procedural fairness in that in the agreed facts provided in the notice given to the Medical Panel pursuant to section 304 of the Act the list of [Ms Landy’s] current prescriptions and medications did not include reference to her use of Norspan transdermal patches, and the Medical Panel included among the aspects of the nature of [her] current medical condition the perceived adverse symptoms allegedly experienced by the worker from opioid use including the use of Norspan transdermal patches without first giving [Toyota] an opportunity to respond to:
(i)the impact, if any, of [Ms Landy’s] opioid use including her use of Norspan transdermal patches on the nature of her current medical condition; and
(ii)the appropriateness and/or necessity for [Ms Landy] to use these opioid medications including the Norspan transdermal patches into the foreseeable future.
Principles relevant to medical panels and procedural fairness
In Wingfoot Australia Partners Pty Ltd v Kocak[11] the High Court said of the role of a Medical Panel:
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. [12]
[11](2013) 252 CLR 480.
[12]Ibid, 498-499 [47] (citations omitted) (‘Wingfoot’).
Whilst it is true, as counsel for Ms Landy pointed out, that this statement of principle highlights the specific function of the Panel in providing its own opinion as to the questions asked, there is nothing (at least to my mind) in the Decision that alters or adjusts earlier statements by judges of this Court of the application of principles of procedural fairness in the judicial review of medical panel decisions. I do not accept, as hinted at by senior counsel for Ms Landy, that the decision in Wingfoot in any material way alters the obligation on the Panel to accord the parties procedural fairness.
The hearing rule is a fundamental part of the obligation to afford parties procedural fairness. Mason J in the seminal decision of Kioa v West[13] said as to procedural fairness and the ‘hearing rule’:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to made against him and to be given an opportunity of replying to it.[14]
[13](1985) 159 CLR 550.
[14]Ibid, 582.
More particularly in the context of judicial review of medical panel decisions, Cavanough J in Barrett Burston Malting Co Pty Ltd v Kotzman[15] said:
[15][2013] VSC 248 (‘Barrett Burston’).
A medical panel convened to form its opinion as to medical questions referred to under the Act is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by the discharge of that function. Failure to sufficiently accord an affected party procedural fairness or natural justice contaminates the medical panel opinion with illegality such that it is liable to be quashed upon judicial review. Examples of a medical panel’s opinion being quashed upon judicial review for failure to observe “the hearing rule” of procedural fairness may be found in Calleja v Franet Pty Ltd and Weerappah v Nisselle. The leading Australian case concerning the content of the hearing rule generally is Kioa v West.
A medical panel is obliged to accord the protection of the “hearing rule” of procedural fairness to the employer/insurer party, not merely to the worker party: see, eg, Weerappah where Smith J said:
While much of the foregoing discussion is centred on the position of the worker, it must be borne in mind that there is always another party to these disputes and it too can be disadvantaged if the panel does not accord natural justice. For example, in the course of a medical examination, the worker may reveal information of which the insurer is unaware and which may, if accepted, entitle the worker to the compensation it [sic] had been denied. It would be a denial of natural justice for the insurer not to have an opportunity to address that information before the Panel reached its decision.
A medical panel can also breach the hearing rule in relying upon its own medical expertise to form an opinion – say, as to diagnosis, or, say, as to an aspect of disability previously unnoticed by other medical examiners – such that it could be said that a party did not have a fair opportunity to have that proposed adverse conclusion explored with its own experts. In such a situation, the aggrieved party has been denied a fair opportunity to be “heard” (for instance, through submitting its own medical reports or written submissions) on the issue. Calleja v Franet Pty Ltd is an example of the Supreme Court giving relief in such an instance. [16]
[16]Ibid [32]–[34].
Having considered these propositions in the context of that case – in which the Panel made an unanticipated finding that the worker was suffering from a factitious disorder — Cavanough J found that the Panel had breached the rules of natural justice:
I agree with the employer’s submission that the medical panel’s psychiatric diagnosis – that the worker was suffering from a “factitious disorder” – was unexpected and could not reasonably have been anticipated; and that the employer was denied a fair opportunity to address the matter. In my view, the panel’s psychiatric diagnosis of a “factitious disorder” in its opinion and reasons came “out of the blue”.[17]
[17]Ibid, [48].
Barrett Burston was decided a couple of months prior to the decision of the High Court in Wingfoot. The principles set out by Cavanough J have been adopted and applied by other judges of this court since Wingfoot was decided. As Bell J said in H & G MacDonald Carriers Pty Ltd v Carson,[18] a case not dissimilar to the present:
Of course the Panel was an expert body and its members can rely upon their own medical expertise, as they undoubtedly did in the present case when expressed new opinions that were under a challenge. However, relying upon their own expertise, Panel members must still give parties and interested persons a fair opportunity to be heard in relation to the matters in issue.[19]
[18][2014] VSC 586.
[19]Ibid [17].
To like effect in North v Homolka,[20] Ashley JA (sitting in the Trial Division) adopted the statements of principle set out by Cavanough J noting:
In some circumstances, a panel might be obliged to fragment its consideration of a matter in order to accord a party procedural fairness. Barrett Burston was such a case. So was Calleja v Franet Pty Ltd.
But what are those circumstances? A panel is an expert tribunal. It is entitled to rely upon its expertise in making its determination. Here, the Panel’s expertise was in part the expertise of Dr Homolka, an occupational physician. She might be expected to understand a good deal about job descriptions. It would go too far, and the authorities do not require it, to say that every resort by a panel to its own knowledge and expertise, not communicated to a party, will constitute want of procedural fairness. It will, I think, be a matter of fact and degree in every case, but speaking generally a want of procedural fairness is likely to be disclosed where a finding by a panel is unexpected, could not have been reasonably anticipated, or would not obviously be open on the known material. Barrett Burston and Calleja were exemplars of that kind of situation.[21]
[20][2014] VSC 478.
[21]Ibid, [103]-[104] (emphasis added).
Analysis
This is, to use the words of Ashley JA, a fact and degree case in the application of the hearing rule. Two questions need to be resolved:
(a) Should Toyota have reasonably anticipated that the Panel would rely to a material extent on Ms Landy’s use of opioid or opioid-like medication in reaching its conclusion in relation to her capacity to carry out work both in the past and into the future; and
(b) If the answer to the first question is no, what remedy should be afforded to Toyota?
It was common ground that:
(a) many of the medical reports provided to the Panel contained references to Ms Landy’s intermittent use of opioid medication between 2009 and 2014;[22]
[22]See for example, reports of Mr Roy Carey dated 6 October 2009 and 6 May 2011; Reports of Mr Russell Miller dated 19 September 2011 and 3 November 2014; Reports of Dr David Vivian dated 17 April 2013 and 28 October 2014; Report of Dr David Weissman dated 12 April 2013; Reports of Dr Dominic Yong dated 16 June 2009 and 16 February 2010.
(b) several reports throughout the same time period referred to Ms Landy suffering from tiredness, drowsiness or inattention, which are symptoms commonly associated with the use of opioid and opioid-like medication;
(c) not one of the 30 or more medical reports provided to the Panel identified Ms Landy’s use of opioid medication, in terms, as playing any part in her inability to work either in the past or in the future;
(d) there was no reference in the submissions filed with the Panel by the lawyers for either Toyota or Ms Landy that identified the use of opioid medication as playing a part in her incapacity for employment (indeed, none of the medications listed in the submissions by Ms Landy’s lawyers are opioids); and
(e) no notice was given by the Panel to the parties that it proposed to rely upon the use (past or present) of opioid medications in reaching its conclusions as to past or future incapacity.
The argument of Toyota on this point was simple: it could not have reasonably anticipated that the Panel would place significance on Ms Landy’s use of opioid medication (and its effects) in the context of Ms Landy’s work capacity, given that no medical practitioner had, in the reports provided to the Panel, made this connection. Further, no opioids had been included in the list of Ms Landy’s medications that was provided to the Panel.
Counsel for Toyota submitted that in light of the above, this was an ‘out of the blue’ case in the sense that the opioid use had never been raised previously as a contributing factor to Ms Landy’s incapacity for work. Accordingly, counsel argued that Toyota should have been given the opportunity to make submissions as to the role of Ms Landy’s use of such medication and its likely continuation.
Counsel for Ms Landy responded by pointing to the undeniable proposition that the question of Ms Landy’s medication use was well known to Toyota (in the form of Tramadol which was, as I mentioned, noted in many of the medical reports over a significant period of time). It was also well known that symptoms of drowsiness and inattention, of which Ms Landy complained and were referred to in a number of the medical reports, were associated with the use of opioids or opioid-like medication.
In these circumstances, counsel for Ms Landy contended that Toyota should have been alert to this issue and moreover, that they were in a position to address the ‘adverse effects of opioid use in the context of the very symptoms [Ms Landy] was describing for years.’[23] Simply put, that this was not an ‘out of the blue’ type case.
[23]T47.
I do not accept the argument put on behalf of Ms Landy that the presence of symptoms associated with the use of the medication was enough to alert Toyota of the fact that the Panel would treat the consequence of the medication (as opposed to the extent of the disability) as being a material contributing factor to questions of past and future work capacity.
As noted above, not one of the practitioners who examined Ms Landy, a number more than once, over a period of approximately six years attributed any aspect of Ms Landy’s incapacity for work to the effects of opioid medication; or indeed specifically associated Ms Landy’s symptoms of fatigue and inattention with opioid use.
The submissions filed by both parties, and provided to the Panel for the purpose of their determination of the question of capacity for work, did not mention any effect on Ms Landy’s work capacity, either in terms or inferentially, of opioid use.
Moreover, at the time that Ms Landy was examined by the Panel, Toyota was unaware that Ms Landy was taking any opioid medication as she had only commenced the Norspan treatment shortly prior to her examination by the Panel.
I think it is unrealistic to expect Toyota to have identified a connection between Ms Landy’s incapacity for work and intermittent opioid use, which, as far as Toyota was aware, had ceased prior to her last pregnancy. Given the importance that the Panel seemed to have attached to this factor, I consider procedural fairness necessitated that Toyota be given the opportunity to address this issue.
The second point is determining what should be done as a result of this conclusion.
Nothing that I can see in the medical material suggests that it was unreasonable for Ms Landy to utilise such medication in the past. I doubt very much whether, on the material adduced (including the product information sheets), that there could be any dispute that the use of opiate medication or opiate-like medication can produce the symptoms which the Panel attributed to their use; or that it was unreasonable for Ms Landy to be prescribed and use this form of medication.
However, as senior counsel for Toyota pointed out, the bar in terms of relevance in relation to a finding of a denial of procedural fairness is particularly low.
In Kioa vWest, the High Court held that where a decision involved a breach of procedural fairness then the decision must be set aside, even where the identified error appeared to be technical and not productive of any real injustice.[24]
[24](1988) 159 CLR 550, 603 (Wilson J) in relation to a denial of procedural fairness under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR’).
This approach was impliedly endorsed by the High Court in Australian Broadcasting Tribunal v Bond, in which it noted the distinction between an error of law for which it is necessary for a party to demonstrate that there may have been a different result flowing from the error and that of a denial of procedural fairness which, of itself, leads to setting aside the decision.[25]
[25](1990) 170 CLR 321, 384 (Toohey and Gaudron JJ) again in relation to the ADJR.
Applying this principle means Toyota’s application must be granted.
In any event, whilst I accept counsel for Ms Landy’s submission that it is highly unlikely that any medical practitioner will question the use of such medication in the past, the same does not hold good for the future. Toyota’s medical practitioners may, if asked, express a view about the likely continuation of such medication or the reasonableness of such a course in the light of the diagnosis. Simply put, this is an unknown, but one that may be entertained on reconsideration by a Medical Panel.
It follows that the application for judicial review should be allowed and the Decision of the Panel quashed. The final question then is that of disposition.
What is to be done?
Counsel for Ms Landy submitted that in the event of the application being successful, it should be remitted back to the same Panel – if that was practicable. He said the Panel did an exemplary job and it was only a minor slip that led to error. To send the matter back to a new Panel, with the volume of material it would need to consider and further examinations of Ms Landy, was not justified in the circumstances.
Counsel for Toyota disagreed. Whilst he accepted that there were good reasons of efficiency and cost saving, he argued that where a question of procedural fairness was involved it would be unusual, if not exceptional, for a court to remit the matter to the same Panel.
As previous decisions of this Court concerning judicial review of decisions of medical panels demonstrate, there is no universal rule as to the course to be adopted. There are three options:
1. to remit the matter to the Panel which decided the questions;
2. to remit the matter to the Convenor of Medical Panels (with or without a recommendation as to whether the original panel should reconsider the questions posed); or
3. to order that the matter be heard by a differently constituted panel.
The decision of Ormiston J in Body Corporate Strata Plan No. 4166 v Stirling Properties Ltd (No. 2)[26] is often cited in cases where the Court must decide whether to remit a matter to the original panel or a differently constituted panel. In that case, one of jurisdictional error, his Honour referred to the risk of an original decision-maker ‘patching up’ its decision thus resulting in an ‘air of unreality’.
[26]Body Corporate Strata Plan No. 4166 v Stirling Properties Ltd (No. 2) [1984] VR 903, 912.
His Honour’s decision was explained by Pagone J in the following terms:[27]
The “unreality” referred to by his Honour is that necessarily implicit in an exercise of requiring a decision maker to give reasons in circumstances where it was found, it was likely, that its decision had not taken into account a matter. In those circumstances it would be unreal to require reasons about something which was likely not to have been operative in the decision: it is unreal to ask a decision maker to explain a decision by reference to something which the decision maker had not taken into account. The “patch up” his Honour warned against was the undesirable exercise, in that context, of seeking to have a decision maker explain how its conclusion might be reached by taking into account a matter which, on the hypothesis of the example is supposed to have been entirely overlooked”. In other words, that it is undesirable for the Court to order the giving of reasons for a decision where it is likely that some matter had not been taken into account: in that case justice requires that the matter be looked at afresh.
[27]Davidson v Dr David Fish & Ors [2008] VSC 32 [15].
However, remitter to a differently-constituted decision-maker is by no means inevitable; particularly, when one takes into account the requirements of the Civil Procedure Act 2010 and in particular, s 9 of the Act:
Court's powers to further the overarching purpose
(1)In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—
(a) the just determination of the civil proceeding;
(b)...
(c) …
(d) the efficient use of judicial and administrative resources;
(e)…
(f) …
(g) dealing with a civil proceeding in a manner proportionate to—
(i) the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.
As Kyrou J observed in Vegco Pty Ltd v Gibbons:[28]
[28][2008]VSC 263.
Successful applicants in judicial review and appeal proceedings to the trial division of this Court frequently seek remittal to a differently constituted primary decision-maker when the primary decision is set aside and the matter is remitted. If orders are made by this Court as a matter of course requiring decisions to be remade by a differently constituted primary decision-maker, this may have serious resourcing implications for primary decision-makers and add to the costs and delays of the decision-making process. For the Court to be persuaded to order remittal to a differently constituted primary decision-maker, good reason for doing so, based on established principles must be shown by the party seeking such an order.
His Honour then said:
The guiding principle is that remittal will be to a differently constituted primary decision-maker where there is some feature of the conduct or reasons of the primary decision-maker which would render it unfair to the successful party or give the appearance of unfairness to that party (whether arising from strongly expressed views on key issues, adverse findings on the credit of witnesses, apprehended bias or otherwise) if the matter were remitted to the same primary decision-maker to re-determine the matter. [29]
[29]Ibid [33] (emphasis added).
So, returning to this case, whilst I have concluded that the Panel erred in not alerting Toyota to the issue of Ms Landy’s use of opioid medication and its effect on her work capacity, this is not the type of decision in which there might be a ‘patch up’ of reasons on remitter. As I mentioned earlier, it is patent that the Panel went about its task diligently and with regard to the issues it was required to determine.
Moreover, this is not a case in which the Panel has expressed itself in terms which would disqualify it from further deliberation on the issues. There is, in my view, no prospect of a remitter giving rise to unfairness or the appearance of unfairness.
In this context, I adopt what was said by Emerton J in SJ Beaumont Investments Pty Ltd v Warrnambool City Council,[30] admittedly in a somewhat different context. Her Honour found that there was a denial of natural justice by a VCAT Member, but nevertheless remitted the matter for rehearing by the original decision-maker.
[…] I am not persuaded that a reasonably intelligent lay member of the community who knew something about the functioning of the system would entertain a reasonable suspicion that the Tribunal would start off with a predilection of mind that would make it difficult to accept matters that the applicant might wish to raise as to the merits of the proposal and as to the social and economic benefits of the proposal in particular.[31]
[30]SJ Beaumont Investments Pty Ltd v Warrnambool City Council [2012] VSC 378.
[31]Ibid [47].
I am not satisfied that there is good reason for another panel to determine the medical questions posed by the Magistrate. The Panel has already considered an extraordinarily large amount of written and video material. It has conducted an examination of Ms Landy and taken a history from her. It has given careful consideration to the likely cause of her symptoms and disability. To ask a new panel to reconsider the matter is productive of unjustifiable inconvenience, cost and delay.
Subject to the Convenor’s direction the Panel will be able to reconsider its Decision in light of any submissions Toyota wish to make on the question of the effects of opioid use in the context of Ms Landy’s work capacity.
Accordingly, the appropriate order is to remit the matter to the Convenor of Medical Panels with a recommendation that the medical questions be reconsidered by the original Panel according to law. It will be for the Panel to determine whether it needs any further evidence to supplement submissions that the parties may wish to make, relevant to the question of opioid use and work capacity.
Orders
Subject to hearing from the parties, I propose to make the following order: that the Decision of the Medical Panel made on 28 August 2015 be set aside and the questions be referred to the Convenor of Medical Panels for redetermination according to law and I will recommend to the Convenor that the questions be determined by the original Panel.
Bearing in mind my observations at [4], [23] and [24] the question of costs can be debated by the parties.
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